Lord Rooker: My Lords, it is the Cross Benchers' turn.

Baroness Oppenheim-Barnes: My Lords, does the Minister accept that, whether they are called housekeepers or nurses' aides, it is very important for someone to see whether patients have stopped eating all together? Very often, nurses are too busy to take this in. Trays are taken away and no record is kept. A nursing aide is needed rather than a housekeeper.

Baroness Greengross: My Lords, does the Minister accept that there is huge problem of malnutrition in the hospital population, particularly among frail, elderly people? It is even more of a problem when one considers that more than 90 per cent of malnourished, frail, elderly people are in the community and not even in hospital. Will he assure the House that the Government will develop a strategy to deal with this very serious problem?

Earl Howe: My Lords, I recognise that good nutrition for patients is extremely important but is it not also important for hospital staff to have access to good food as well? What steps are the Government taking to ensure that good and nutritious food is available at all times to hospital staff, especially junior doctors who work long and often unsocial hours when the canteens may be closed? They should not have to rely on takeaways which many of themoften do.

Lord Thomas of Gresford: My Lords, the noble Lord said that I was suggesting that the court-martial system was deficient. Your Lordships might not take it from me, but you might take it from the unanimous decision of the European Court of Human Rights, pronounced a fortnight ago. It said that it was impossible to get a fair trial except in the most exceptional circumstances relating to civilians anywhere in the world. I am concerned about the current situation in the United Kingdom.

Lord Thomas of Gresford: My Lords, certainly there were two grounds upon which the European Court held. The first was in relation to the complaint that a 17 year-old civilian boy had been tried before a court martial—that that was highly undesirable and did not result in a fair trial. Secondly, since it preceded the case referred to, the Court held that it was also procedurally wrong. The advances that have been made in court martials, in trying to bring them up to date, have been made as a result of defence applications to the European Court—decisions of the European Court which the Government have been forced to follow.
	The Minister says that our aim is to achieve a military system of justice equivalent to the civilian system. It could have been achieved in this Bill if the Government had listened to the advice of the Judge Advocate General in important respects and accepted some of the amendments.
	The Minister says that investigations by the service police abroad would be at least doubtful. As your Lordships are well aware, service police do not have the highest track record in the investigation of crime. In numerous cases of which your Lordships are aware, the service police have fallen down and acquittals have followed.
	The system was second best. It could have been made equivalent to the Crown Court system but that opportunity has been missed. In this matter, the extension of jurisdiction over offences committed in this country to the court martial and the removal of cases from the Crown Court clearly impact on an individual defendant's rights—his right to be tried by his peers instead of appearing in front of a panel of officers.
	The combination of disciplinary charges and serious offences put forward by the Minister presents no argument. He himself has said that there were disciplinary offences in one case charged in Canada, but the serious offence was dealt with by the civil court in this country. As for somebody raping a lady abroad and then raping the same lady in this country, we all know that even though he might not be tried for the rape abroad, all the evidence in relation to it would be admissible on a trial in this country on a basis of similar facts, a similar system or whatever—certainly under some of the legislation passed by this Government in the past three years.
	The reasons for extending jurisdiction have simply not been made and I cannot accept the Minister's explanations. However, I pay tribute to him for the way that he has conducted this Bill—he has done a tremendous job in keeping us informed as things go along. There is no personal criticism involved, but I do not accept his arguments and I seek to obtain the opinion of your Lordships' House.

Lord Thomas of Gresford: My Lords, Amendment No. 5 follows on from some of my remarks on Amendment No. 4, which I do not propose to repeat. The wording of the amendment echoes the decision of the European Court that was delivered last week. Perhaps I may remind your Lordships that Sir Nicolas Bratza was the number two in that court, sitting next to the president. He is a highly distinguished jurist from this country who used to represent the Government in many cases.
	I have indicated the circumstances of the case. Paragraph 43 of the decision of the court states that the court,
	"recalls, by way of preliminary remark, that there is nothing in the provisions of Article 6 to exclude the determination by service tribunals of criminal charges against service personnel. The question to be answered in each case is whether the individual's doubts about the independence and impartiality of a particular court-martial can be considered to be objectively justified and, in particular, whether there were sufficient guarantees to exclude any such legitimate doubts".
	That is the position with regard to service personnel. The court said that it is,
	"a different matter where the national legislation empowers a military court to try civilians on criminal charges ... While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6 ... The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and, if so, only on a clear and foreseeable legal basis".
	In the particular case, it was not finally decided whether there were compelling reasons, but the issue concerned whether a number of witnesses would have to be flown from Germany to this country. The fact that, when the trial was held in Germany, witnesses not simply from the UK but from all over the world were flown in to give evidence is perhaps to be noted.
	The final conclusion was that the 17 year-old boy was justified. In its decision, the court says that it,
	"considers ... concerns about the independence and impartiality of his tribunal to be objectively justified. Accordingly it finds that there has been a violation of Article 6 §1 of the Convention".
	As your Lordships know, Article 6.1 deals with the need for a fair trial. I submit to your Lordships that there should be developed, along with the service civilian court, a civilian jurisdiction for juveniles in which the case is tried not by officers, but by a judge advocate, along with suitably qualified and experienced people who have had the same training for dealing with juveniles as magistrates have had. That is how juveniles should be dealt with.
	We were told on Report that there are 20,000 juveniles with service people overseas. So an awful lot of youngsters are involved. If they commit more serious offences such as murder and manslaughter—the very rare cases where one sees a juvenile person tried in the Crown court—they should be tried in a Crown court in this country in the ordinary way. We currently try in this country offences involving alleged homicide which have taken place overseas. Your Lordships will remember particularly last September's case at Colchester, where paratroopers were tried for murder. There is no reason why juveniles who are charged with murder cannot be tried in this country.
	Unfortunately, this Bill misses the opportunity and misses the trick. From Second Reading through all its stages, we have advanced the argument that juveniles should be dealt with as they are in this country. The Government have not listened on this occasion. Again, I make no personal criticism of the Minister, but it is a fact that a youngster in the same situation as the defendant Martin would be liable to be charged and tried abroad by court martial if the circumstances were appropriate.
	This is not acceptable. We are living in the21st century. There are people, particularly those who sit on the Cross-Benches, who devote their lives tothe problems of youngsters and who have made significant contributions to looking after their welfare. That is the issue of principle that arises here. I have not, though I was very much tempted, extended my amendment to cover all civilians, which would be in line with the judgment of the European Court that I quoted to your Lordships. I have confined it to the specific instance of juveniles. I shall seek your Lordships' support in due course after hearing what the Minister says. I beg to move.

Lord Garden: My Lords, I am grateful to the Minister for his agreement on Report that we should defer debating this amendment until Third Reading. Amendment No. 6 seeks to constrain the manner in which those members of the Armed Forces under the age of 18 may be used and treated. There would be a prohibition on service in combat areas, and they would be prohibited from guarding using live weapons. The amendment also requires special handling of those members of the Armed Forces who are under 17.
	I described in Committee how the amendment would implement the clear recommendations stemming from Nicholas Blake QC's investigation into the tragedy of Deepcut barracks. I also explained our disappointment over the Government's response to the Blake report. I remind your Lordships what the Blake report said. Recommendation 3 was:
	"The Army should plan to eliminate the need for soldiers to join their units in the field army on completion of Phase 1 and 2 training until they reach the age of 18".
	Recommendation 27(iii) said:
	"The minimum age for trained soldiers in the field army to conduct unsupervised armed guard duty should be 18".
	Recommendation 2(i) said:
	"Those under 17 should be trained in establishments exclusive to this age group".
	The Government, in their response to the report, have given various reasons why they are either unwilling or do not have the resources to implement those recommendations.
	In any event, it should not have needed the horrors that we all read about and debated following Deepcut to make the Government face up to their responsibilities in this area. On 24 July 2003, the United Kingdom ratified the UN optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This protocol says in Article 1:
	"States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities".
	Article 3 recognises that,
	"persons under the age of 18 years are entitled to special protection".
	The amendment both deals with the Blake recommendations and brings us in line with what we have ratified in the UN protocol.
	The Minister wrote to me on 24 October. I, too, pay tribute to the ceaseless work that both he and the staff have done in briefing us and keeping us aware. The problem is that there is always no change; and there are always explanations of why there is no intent to modernise in this Bill, but merely to bring together ancient law. I would be grateful if the Minister could tell us which other European nations take the view that under-18s can be put into combat. His letter tells me that the proposals by Blake and ourselves regarding combat areas ignore,
	"the practical reality that does very occasionally arise. For example, ships have been diverted to operations at minutes' notice".
	That means that the MoD is in breach of its obligations under the protocol. It should not place under-18s in a position where it knows that this may happen. It is not terribly difficult to keep them in the training area if there are going to be under-18s in the armed services. If the MoD is to hold to its position where the United Kingdom is internationally criticised for its policy and will not put in place these most basic safeguards, we shall subsequently need to examine carefully whether recruiting under-18s into the military should continue in this country. I beg to move.

Lord Lyell: My Lords, I listened carefully to the noble Lord, Lord Garden, presenting and explaining his amendment. When I looked at it before he spoke, it seemed like a multiple independent military vehicle. First, it says clearly in subsection (1),
	"under the age of 18".
	I was not aware until my noble friend Lord Attlee spoke that training for such action could begin at such a young age.
	I apologise for taking your Lordships back to 1957 when I served for two years under the National Service Act, and three members of my squad celebrated their 18th birthdays during the first three weeks of our training. I know that circumstances have changed. I hope that the Minister will not dally unduly with my sundry thoughts. Perhaps he will cover my queries in writing; I am not asking for a reply this afternoon. I am interested to know that it would be possible for young men, and possibly young women, under the age of 18 to serve in combat areas. Indeed, the noble Lord, Lord Garden, explained that detailing who will or will not be in their 19th year in a ship's company when the ship might be called into action would be extraordinarily difficult. Such a provision would be extraordinarily hard for all three services, especially as they are now.
	I have great sympathy with subsection (2), and understand it, thanks to the tragic events at Deepcut. But how would that subsection mix with what we understand from subsection (1), and with what my noble friend said—that young men and women may start their training at the age of 17? If they are permitted to serve in a combat area or are deemed safe to use live weapons, why should they be proscribed from carrying out guard duty with live weapons under the watershed age of 18? I look forward to hearing what the Minister has to say about subsection (3) which states that,
	"dedicated locations, and particular attention is to be given to their care".
	That is praiseworthy but no doubt the Minister will have an excellent explanation. I do not seek to waste more of your Lordships' time this afternoon.

Lord Drayson: My Lords, before turning to Amendment No. 6, I want to say that during our most useful debate in Committee, the noble Lord, Lord Garden, mentioned that I may have been mistaken in referring to recruits under the age of 18 at Harrogate. Of course, he was quite correct in believing that the training facilities at Harrogate were exclusively for those under 17 rather than under 18. While he graciously conceded that that was a minor point, my use of the generic term "under 18" was clearly not right in that context. I gladly now put the record straight by emphasising that the training facilities at Harrogate are, indeed, for under-17s.
	The noble Lord, Lord Garden, expressed the view that he was disappointed with our response to Nicholas Blake in the Deepcut review, specifically in relation to our duty of care towards service personnel under the age of 18. I can assure noble Lords that the Ministry of Defence welcomed Mr Blake's report. Many of the recommendations were accepted and some have already been acted upon.
	On the accommodation of those under the age of 17, I can only repeat and re-emphasise what I have said previously. We fully appreciate the specific requirements of those under the age of 18. Therefore, although the Army has some training facilities exclusively for recruits under the age of 17 at Harrogate and Bassingbourn, with some under-17s also being trained at other training establishments, we do not believe that accommodating under-17s separately from their colleagues is an appropriate approach to adopt across the whole of the Armed Forces. We are instead concentrating on improving accommodation for all recruits. Improvements to the training environment will continue to be taken forward through the defence training review.
	As I told noble Lords, an important aspect of a serviceperson's training and of service life is the ability and confidence to handle live weapons. A fully trained and qualified service man or woman must be able to bear arms in legitimate pursuit of the operational imperative, and we would not want to rule out the possibility of suitability qualified personnel aged 17 or over having been judged by their commanding officer to have the maturity and appropriate attitude to take personal responsibility for a firearm with live rounds.
	As I have made it clear, under-17s entrusted to do that are accompanied by an appropriately trained and qualified serviceperson when they undertake armed patrolling duties. Those supervising, and indeed all in the chain of command, fully appreciate the weight of those responsibilities and take appropriate measures in relation to the safety and well-being of those young people. In relation to the use of under-18s in operations, the United Kingdom position is the result of a historical anomaly. It is based on a relatively recent assessment of the requirements of the services and our obligations under the United Nations convention. Indeed, guidance issued to the services ensures that if units are given notice to deploy to operations, under-18s will almost invariably be removed.
	The decision to remove a serviceperson under the age of 18 from a ship or unit before deploying will be taken whenever possible, but that decision must be balanced against the effect that it might have on the ability to successfully achieve the military aim. For example, if a rapid deployment is essential and that deployment is mounted from other than the home base, it might not be possible to remove someone under 18 to safety. We can no longer rely on the relatively static disposition of our forces on the European mainland. We must accept that if units, particularly ships but also other detached units—as is increasingly common these days—are already deployed and an emergency arises, while every practical step will be taken to remove or land under-18s, that simply might not be possible.
	In recent years, HMS "Illustrious" was deployed with no notice from exercises in the Bay of Biscay to support operations in Sierra Leone. The tragic events of 9/11 occurred while significant numbers of UK forces were transiting to or deployed in Oman. The recent evacuation of civilians from the Lebanon was conducted in large part by ships already in the area. Noble Lords will know that events can turn as quickly as this, and that our forces must be prepared to deal with them when and where they arise. We fully recognise our responsibility towards under-18s. That is why in almost every case under-18s will not face hostilities. That said, we must not underestimate the importance to the services that under-18s who have completed their training can be employed immediately in front-line ships and units. It is true that in exceptional circumstances that might expose them to hostilities, but as I have demonstrated, the likelihood is extremely low.
	The UK's declaration on signing the UN protocol makes it clear that we do all we can and we could not be more aware of our obligations in that area. We believe that our policies on under-18s are robust and compliant with national and international law, but we continue to keep them under review.
	Let me be clear about our position on service personnel under the age of 18 serving in combat zones. Of course we would prefer to be able to offer a cast-iron guarantee that this situation would never arise, but while every precaution is taken to avoid the potential for that to happen, a small risk remains, even with the most careful thought and planning. I attach the utmost importance to our duty of care for all our service personnel. We need to consider carefully how we may best achieve that by balancing our obligations towards those aged under 18, reflecting their particular needs and at the same time avoiding the risk of causing barriers between them and their older colleagues. I remain confident that the needs of service personnel under the age of 18 are being properly addressed and that there is no need to introduce primary legislation to enforce special provision for these young service men and women.
	The noble Lord, Lord Garden, asked me which other European nations put under-18s into combat, and the answer is none. However, many of those countries have systems of national service and conscription and operate in a non-expeditionary role, which is quite different from us. It is therefore not a fair comparison.
	Although I fully understand the noble Lord's genuine and strongly held views in this area, I hope that he is now reassured by my explanation and is prepared to withdraw the amendment.

Lord Garden: My Lords, the Minister will be unsurprised that I have not been reassured by his reiteration of the Government's position. Various noble Lords explained why it is difficult to do the things that this amendment requires. It is certainly difficult, but there is an international perspective that 18 is the make-or-break age for whether someone should be in combat wearing a uniform. That can be seen in the UN protocol, in the definition of child soldiers and in the way the rest of Europe acts. I am most grateful to the Minister for confirming—I thought it would be better coming from him—that no other European nation has under-18s. To say that they do not deploy is not correct; just look at Afghanistan at the moment. It was an extraordinary statement. The argument used by some noble Lords about soldiers being very good at 17 works just as well if they are 13. Why do we take a particular age? We take it because there is an international standardof 18.
	Then there is Deepcut. Over a prolonged period, noble Lords showed their horror at what happened there. It is a separate matter, a subset of this under-18 question. We questioned how it could happen and, after so much angst, we welcomed a proper inquiry into it by a respected QC. When we read his report, some of us thought that he did not go far enough in some of his recommendations. Nevertheless, it was an objective assessment. He made some simple recommendations, and I remind noble Lords that when he said that he was prepared to accept the continuation of under-18s in the Armed Forces as servicemen, he did so not on the grounds of recruitment, which is the argument normally made by the Ministry of Defence, but on the grounds of education; he felt they got a better education if they were in the services than they might get in the state system between the ages of 16 and 18. That was why he justified it, but he did so with the caveat that his recommendations should be implemented.
	We all know that the MoD will not agree to under-17s having special areas because of the resources question. The noble Earl, Lord Attlee, says that subsection (2) in the amendment is impractical because there are insufficient resources. We are taking about budgetary concerns, when there is an international standard for under-18s. While I accept that there will be some exercises in which under-18s will not be able to participate, that is a relatively small price to pay to raise ourselves to normal, international, civilised standards. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 6) shall be agreed to?
	Their Lordships divided: Contents, 60; Not-Contents, 227.

Lord Garden: My Lords, I shall be brief in moving Amendment No. 7, not because it is unimportant but because we discussed it at each stage of the Bill when noble Lords were most helpful in developing its language. I considered the suggestions made by the noble Earl, Lord Attlee, on Report about the importance of broadening the scope of the amendment to cover all the services rather than only the commanding officer. While I am sympathetic to that, we have achieved a wording that is focused and appropriate and that received a degree of consensus around the House on Report.
	The aim of the amendment is to ensure that commanding officers are not put in an impossible position when mysterious foreign aircraft are given clearance to make use of their facilities. I remind noble Lords that such occasions have arisen at Royal Air Force Brize Norton and Royal Air Force Northolt, as we have heard. In getting the language right, I wish to acknowledge the great assistance given by the noble Lord, Lord Kingsland, in reminding us of the responsibilities of a commanding officer. They cannot be abrogated, which is an important element of the new clause. It makes it possible for the Defence Council to make the necessary regulations in order to clarify what commanding officers should do, although they cannot absolve themselves of their responsibilities under international law.
	Our debates have inevitably focused specifically on extraordinary rendition and the universal abhorrence of such flights where suspects are transported to distant locations to be interrogated under conditions which amount to torture under the international definitions. I know that we will examine the amendment with that in mind. However, I have made it forward-looking in the sense that it gives the Defence Council the authority to look at other possible violations of international law. One might think of cases where there is a breaking of international sanctions in transferring weapons to a theatre by air or other breaches of international law.
	This is the opportunity to give commanding officers the appropriate guidance so that they will not find themselves accused of, in the case of extraordinary rendition, helping to facilitate torture or other breaches of international law. Such cases can be brought. In Committee, I referred to a case in Italy where a military officer had been charged in connection with extraordinary rendition.
	We have argued the case sufficiently and have all reached an agreement—including on the Government Benches—that we abhor extraordinary rendition. This amendment would discharge our responsibilities to people in the military in difficult circumstances commanding military airfields through which flights are being directed under uncertain circumstances. I beg to move.

Lord Campbell of Alloway: My Lords, I shall be brief. We now know, as the noble Lord, Lord Drayson, said on 12 October, that arrangements for these flights are,
	"part of the normal arrangements between states".—[Official Report, 12/10/06; col. 440.]
	We also know, from the noble Baroness, Lady Scotland of Asthal, on 18 October (at cols. 782 and 783 of the Official Report) that these were not arrangements made between the UK and the US. The grant to foreign aircraft to overfly or leave our military airfields in the UK was given by diplomatic clearance under "customary" and reciprocal international law of which the principles were not clear. That had happened "for decades", and the Chicago Convention does not apply. She also said that we expect that if there is something to do with rendition then they will tell us, but that there is no obligation to do so.
	The right in this arrangement, which has apparently gone on for decades, is diplomatic clearance sought with or without permission. I do not know quite what that means. If you are seeking diplomatic clearance, I think that means that you are asking permission, and I assume that that permission is either without asking the purpose or not. I am a bit lost in that diplomatic sea.
	Where do we go from here if that is right? The United Kingdom cannot unilaterally opt out of such an international arrangement, which by custom is not justiciable and could not be enforced in any court of law. Resorting to the ECHR, the Human Rights Act 1998 and other international conventions would also be excluded, as you cannot challenge the operation of diplomatic conventions in any court of law. This amendment is destined to drift into the "ebb-drawn shoals" of an Orcadian poet, in which the series of sister amendments already lie in limbo.
	The intendiment of this amendment could be dealt with through bilateral agreement between the United States and ourselves. That would require granting clearance to overfly and so forth—and taking off in the UK only if satisfied as to compliance with legal requirements and international obligations, the provisions for inspection provided by the US for take-off and with regard to passenger lists or bills of lading for cargoes of weaponry. It is not for me to draft the provisions of such an agreement, but I mention this to show the sort of arrangement that could be made by diplomacy. It is really beyond the point to ask why permission was granted for twoout of four flights. What happened to the large remainder? Why was no explanation of these arrangements—I am glad to see the noble Lord, Lord Triesman, in his place—given in response to my Unstarred Question, on which I was helped by my noble friend Lord Kingsland?
	On 18 July, we had no inkling of what I have mentioned to your Lordships today. Indeed, no one had an inkling before 12 or 18 October. I am not saying this to criticise the Government because there is no use in doing so. Neither is there any use in asking a whole series of questions that you might as well ask Martin Gilliatt's one-glass-eyed teddy bear.

Lord Lyell: My Lords, I hope that I will not be considered mischievous, but I wonder whether the noble Lord, Lord Garden, let alone my noble friend Lord Kingsland, might be able to explain "flights by foreign aircrafts", which is in the plural and in heavy print. To what do these refer? The noble Lord, Lord Garden, referred to two Royal Air Force stations—I think Brize Norton and Northolt. It may interest him to know about Royal Air Force Macrahanish, an airport with very large facilities that is not too far from the home of my noble friend Lord Lang of Monkton. Various sightings have been reported in the Scottish media of exotic types of aircraft, which I presume were on their way to various bases, perhaps elsewhere in Europe. I hope they are not flying saucers or other flying machines. The noble Lord, Lord Garden, and other noble Lords who have spoken have made a case for the Minister to clarify. I simply wonder why "foreign aircrafts" are in the plural.

The Bill was returned from the Commons and agreed to.

The Bill was returned from the Commons and agreed to.

The Bill was returned from the Commons and agreed to.
	House adjourned at twenty-five minutes to seven o'clock.